Citation Nr: 0119207
Decision Date: 07/24/01 Archive Date: 07/31/01
DOCKET NO. 00-09 800 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to a motorized scooter.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from October 1951 to May
1956.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from an April 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Lincoln, Nebraska (RO), which denied the benefit sought on
appeal.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a July 1999 decision of the Prosthetic
Major Medical Equipment Committee (Committee) of the
Department of Veterans Affairs (VA) Carl T. Hayden Medical
Center (VAMC), and the VA Regional Office (RO) in Phoenix,
Arizona, which held that a motorized scooter was not
medically indicated.
REMAND
The veteran maintains, in substance, that he is entitled to
have VA provide a motorized scooter. During a September 2000
hearing before a hearing board at the VAMC, he testified that
he had been prescribed to receive a motorized scooter. He
said that he had been using a motorized scooter for two to
three years, on loan from a friend. The veteran testified
that his physical condition required a motorized scooter. He
noted that he suffered from emphysema, asthma, bronchitis,
two heart conditions, a stomach condition and carpal tunnel
syndrome. As a result, he needed a wheelchair but lacked the
strength to propel a manual wheelchair. Accordingly, a
favorable determination is requested.
A December 1997 rating decision specifies that the veteran is
service-connected for dyshidrosis of the feet, right leg and
left palm, evaluated as 10 percent disabling. The veteran's
non-service-connected conditions consist of chronic
obstructive pulmonary disease, evaluated as 100 percent
disabling; PTSD (also diagnosed as anxiety and depression,
previously diagnosed as conversion reaction), evaluated as 50
percent disabling; degenerative joint disease of the cervical
spine, evaluated as 30 percent disabling; instability of the
left knee, evaluated as 20 percent disabling; instability of
the right knee, evaluated as 20 percent disabling; carpal
tunnel syndrome of the left arm, evaluated as 20 percent
disabling; carpal tunnel syndrome of the right arm, evaluated
as 20 percent disabling; organic heart disease, evaluated as
20 percent disabling; coronary artery disease, evaluated as
20 percent disabling; hyperlipidemia, evaluated as 10 percent
disabling; reflux disease, evaluated as 10 percent disabling;
marked tremor of the upper extremities, evaluated as 10
percent disabling; chronic back strain, evaluated as 10
percent disabling; and septotomy, evaluated as
noncompensable. The combined non-service-connected
disability evaluation is 100 percent.
The procedural record before the Board shows that in
decisions dated July 7, 1999 and October 4, 2000, the
Committee denied the veteran's claim under VHA Manual M2,
Part IX, 12.03(c). An undated statement of the case and an
undated supplemental statement of the case informed the
veteran that according to VHA Manual M2, Part IX, 12.03(c), a
motorized wheelchair might be considered for veterans who
have a disability resulting in the loss or loss of use of
both lower extremities, combined with a loss or loss of use
or severe impairment of both upper extremities to the extent
that it is medically determined that they are incapable of
manually propelling a manual wheelchair.
During the pendency of the appeal, VHA Manual M2, Part IX,
Chapter 12 was rescinded. On October 30, 2000, a VHA
Handbook 1173.6 Transmittal Sheet updated the VHA procedures
for providing wheelchairs and special mobility devices to
veteran beneficiaries. In doing so, it rescinded VHA Manual
M2, Part IX, Chapter 12. The guidelines now provide that a
motorized wheelchair may also be considered for eligible
veterans who suffer from any of a list of specified
conditions, including severe chronic obstructive pulmonary
disease or degenerative joint disease. The guidelines also
provide that a scooter or cart may be provided for veterans
who have a disability resulting in the loss of endurance
required to operate a manual wheelchair at home and/or in the
environment in which the scooter or cart is to be used. It
is specified that these are most often veterans who have been
diagnosed with a disease that may be exacerbated by the
exertion of normal ambulation or the use of a manual
wheelchair. Several conditions are listed, including chronic
obstructive pulmonary disorder.
Generally, when the laws or regulations change while a case
is pending, the version most favorable to the claimant
applies, absent congressional intent to the contrary. Karnas
v. Derwinski, 1 Vet. App. 312-13 (1991). But see Rhodan v.
West, 12 Vet. App. 55, 57 (1998).
In addition, the Board observes that there has been a
significant change in the law during the pendency of this
appeal. On November 9, 2000, the President signed into law
the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-
475, 114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well grounded claim, redefines
the obligations of the VA with respect to the duty to assist,
and supercedes the decision of the United States Court of
Appeals for Veterans Claims in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had
held that VA cannot assist in the development of a claim that
is not well grounded. This change in the law is applicable
to all claims filed on or after the date of enactment of the
Veterans Claims Assistance Act of 2000, or filed before the
date of enactment and not yet final as of that date.
See also Karnas, 1 Vet. App. at 308.
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. In addition, because
the agency of original jurisdiction has not yet considered
whether any additional notification or development action is
required under the Veterans Claims Assistance Act of 2000, it
would be potentially prejudicial to the veteran if the Board
were to proceed to issue a decision at this time. See
Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op.
No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747
(1992)). Therefore, for this additional reason, a remand is
required.
Accordingly, this case is REMANDED for the following:
1. The veteran may submit additional
evidence and argument in support of his
claim. Kutscherousky v. West, 12 Vet. App.
369 (1999).
2. Then, the agency of original
jurisdiction must review the claims file
and ensure that all notification and
development action required by the VCAA
is completed.
3. After undertaking any development
deemed appropriate in addition to that
specified above, the Committee should
readjudicate the veteran's claim of
entitlement to a motorized scooter, in
light of the new guidelines set forth in
the VHA Handbook 1173.6 Transmittal
Sheet.
If the claim remains denied, the veteran and his
representative should be furnished a supplemental statement
of the case. They should be afforded the appropriate period
of time within which to respond thereto, at their option, as
provided by governing regulation. Then, if otherwise in
order, the case should be returned to the Board after
compliance with all requisite appellate procedures.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).